Algunas técnicas

The question of using non-binding law (soft-law) for interpreting a

treaty has not been addressed either by the ILC‟s work on fragmentation of PIL

or in academic literature. As far as the VCLT interpretative principles are

concerned, soft-law could, perhaps, may aid the interpretation of a treaty

provision as evidence of the ordinary meaning (Article 31(1)). The AB WTO

191

ILC Final Rep., [467].

192

EC-Biotech Products, [7.70].

193_{ILC Final Repέ, [41λ]ν Fέ Baetens, „Muddling the Waters of Treaty Interpretation? Relevant}

Rules of International Law in the Mox Plant OSPAR Arbitration and EC-Biotech Case‟ (2008) 77 Nordic JIL 197, 216.

194

Simma, Kill, (note 54), 693-6λ4ν Mέ Samson, „High Hopes, Scant Resourcesμ A Word of Scepticism about the Anti-Fragmentation Function of Article 31(3)(c) of the Vienna Convention on the Law of Treaties‟ (2011) 24 LJIL 701, 710, 712-713; A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law (Oxford University Press, New York, 2008) 366-367.

in the US-Shrimp case used Agenda 21195 and the Resolution on Assistance to

Developing Countries196 in this way.197 Alternatively, non-binding PIL norms

could trigger the applicability of Article 31 (3)(c) VCLT, if it is accepted that

„rules of international law‟ include non-binding sources of law. Nonetheless,

the mainstream view is that Article 31 (3)(c) VCLT does not come into play in

the case of considerations that are not firmly established as binding rules.198

Gardiner is right, however, in carefully noting that the current practice of

international courts is insufficiently developed.199

The Ospar tribunal in the Mox Plant case dismissed Ireland‟s suggestion to take non-binding international instruments to interpret the Ospar

Convention. Ireland had specifically invited the tribunal to take „evolving

international law and practice on access to environmental information‟200

into

account and referred to the Rio Declaration on Environment and

Development201 and the Aarhus Convention.202 The Rio Declaration is a non-

binding instrument and the Aarhus Convention was not ratified by either of the

parties to the dispute. The tribunal accepted, in principle, the possibility of

drawing from current international law and practice to inform the interpretation

of the OSPAR convention. Yet, it proceeded to reject any interpretative

guidance from not lex lata PIL norms, which are not admissible under Article

195

Agenda 21: Programme of Action for Sustainable Development, UN Doc A/Conf.151/26, 14 June 1992.

196

Resolution on Assistance to Developing Countries, adopted in conjunction with the Convention on the Conservation of Migratory Species of Wild Animals.

197

US-Shrimp, [130].

198

ILC Final Rep., [426(a)]; Orakhelashvili, (note 78), 366; cf. Baetens, (note 77), 209.

199

Gardiner, (note 54), 266-268ν Jέ Merrills, „International Adjudication and Autonomy‟, in Rέ Collins, N.D. White (eds.), International Organisations and the Idea of Autonomy (Routledge, Oxford, 2011) 160, 170.

200

Ospar Convention Award, [98].

201

(1992) 31ILM 874.

202

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 2161 UNTS 447.

31 (3)(c) VCLT.203 One of the arbitrators, Griffith, dissented from the

judgment arguing that not-binding PIL norms could have normative and

evidentiary value for informing the OSPAR convention.204

Griffith‟s view cannot be dismissed as being without meritέ The fact

that an international instrument has no binding force does not necessarily mean

that it is of no relevance when interpreting a treaty.205 It is true that the use of

soft-law cannot be easily justified on the basis of the interpretative principles in

Articles 31-33 VCLT. Yet, its evidential weight is acknowledged by the

IACtHR‟s jurisprudence, a pertinent example of which is the Saramaka People

case.206 In this case the applicants were members of an indigenous people in

Suriname who complained of a breach of their right to enjoy and use their

traditionally occupied lands and resources under Article 21 IACHR. The

IACtHR took the ICCPR and a number of non-treaty instruments and evidence

of international practice into account.207 It referred to the UN Declaration on

the Rights of Indigenous Peoples and it extensively discussed the views and

General Comments by the Human Rights Committee, General

Recommendations by the Committee on the Elimination of Racial

Discrimination. The IACtHR concluded that Suriname had the obligation to

protect the right of the Saramaka community to enjoy and use their

traditionally occupied lands and resources. It also identified certain safeguards

203

Ospar Convention Award, [99]-[105].

204

Dissenting Opinion of Gavan Griffith QC, in Ospar Convention Award, [10].

205_{JέAέ Frowein, „The Interrelationship between the Helsinki Final Act and the International}

Covenants on Human Rights and the European Convention on Human Rights‟, in Tέ Buergenthal (ed.), Human Rights, International Law and the Helsinki Accord (Allanheld, Osmun & Co. Publishers, New York, 1977) 71, 72.

206

Saramaka People v Suriname, Series C No 172, 28 November 2007.

207

against restrictions of the community‟s rightέ208

Notably, these safeguards, such

as the effective participation and sharing of benefits regarding development or

investment projects within tribal territories, were inferred by reference to the

non-treaty instruments.

2.4 Conclusions

This Chapter highlighted that international courts and tribunals have a

considerable practice in interpreting their constitutive instruments by taking

PIL into account. It is generally accepted that international courts and tribunals

have the duty to take general international law, especially customary

international law and general principles of law, into account. In most instances,

whether or not and to what extent general international law is considered

relevant to inform a treaty is a matter of a case-by-case interpretation. The

restricted jurisdiction of the court or tribunal and the confines of the

interpretation process dictate the limit of the interpretative influence that

general international law may have on the construction of a treaty provision.

Turning to the question of taking other treaties into account to construe

the treaty under interpretation, international courts and tribunals seem to be

hesitant. With the exception of the IACtHR, which employs other treaties in its

legal reasoning, the international case-law previously discussed indicates that

such a practice is rarely encountered. Lastly, international court and tribunals -

except the IACtHR - are rather dismissive of using non-binding PIL norms due

to the lack of binding force and the difficulty of providing a solid legal basis

under the VCLT for justifying their consideration.

208

In document Reingenieria Del Cambio (página 161-165)